Brief Summary

Jurisdiction — Labour Court — Applicant seeking to interdict disciplinary proceedings — Court finding it lacked jurisdiction to grant relief sought — Applicant failed to establish reliance on rights under the Labour Relations Act — Application dismissed for want of jurisdiction and costs awarded due to abuse of process.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an urgent application in the Labour Court seeking declaratory, interdictory, and review relief aimed at halting and nullifying ongoing internal disciplinary proceedings against a senior public servant, and at setting aside a ruling made during those proceedings. The application also sought consequential relief concerning the applicant’s continued precautionary suspension.

The applicant was Doctor Mashabane, the Director-General of the Department of Justice and Constitutional Development. The first respondent was Prof. T. Madima SC, the independent chairperson appointed to preside over the applicant’s disciplinary hearing. The second and third respondents were the Minister of Justice and Constitutional Development and the Department of Justice and Constitutional Development respectively. The fourth respondent was the Minister of Transport (to whom the President redelegated authority to deal with the disciplinary process). The fifth respondent was the President of the Republic of South Africa.

As to procedural history, disciplinary steps were initiated following operational difficulties in establishing a presidential commission of inquiry. The applicant raised an internal point in limine before the chairperson concerning alleged lack of authority to proceed with the disciplinary panel as constituted. On 19 December 2025, the chairperson dismissed that challenge and extended the applicant’s suspension. The applicant then launched this urgent Labour Court application, which was argued on 22 January 2026, with judgment handed down on 28 January 2026.

The general subject-matter of the dispute concerned the Labour Court’s jurisdiction to intervene, on an urgent basis and in medias res, in uncompleted disciplinary proceedings in the public service—particularly where the applicant’s challenge was framed as one of unlawfulness/invalidity rather than the enforcement of rights and remedies under the Labour Relations Act 66 of 1995 and related labour legislation.

2. Material Facts

The applicant was appointed on 1 March 2021 as Director-General of the Department for a fixed five-year term expiring on 28 February 2026. It was accepted that the relationship between the applicant and the Minister of Justice had materially deteriorated in the period leading up to the contemplated discipline, but the Court treated detailed background narratives as not material to the dispositive issues before it.

On 13 July 2025, the President announced the appointment of a Commission of Enquiry chaired by Justice Madlanga. The applicant was tasked with establishing the commission and handling its logistics. It was undisputed that significant logistical and procurement challenges arose and that, on 26 August 2025, the commission issued a public statement indicating that public hearings would not commence on 1 September 2025 due to the Department’s failure to finalise procurement of ICT infrastructure.

On 26 August 2025, the Minister of Justice informed the applicant that the President had authorised disciplinary action. This authorisation took the form of a written presidential delegation (President Minute No: 198 of 2025) empowering the Minister of Justice to initiate disciplinary processes against the Director-General and, if necessary, place him on precautionary suspension, and to deal with matters pertaining to the disciplinary hearing and its outcome.

The applicant was given notice of intended suspension on 26 August 2025 and invited to make submissions. A suspension was publicly announced on 12 September 2025, communicated further on 13 September 2025, and formalised in a written notice dated 12 September 2025 and issued on 15 September 2025. The suspension was effected under Chapter 7 of the Senior Management Service Handbook, contemplated in PSCBC Resolution 1 of 2003, which provides that precautionary suspension may be imposed for a maximum of 60 days and that disciplinary proceedings must commence before expiry of that period.

The applicant’s attorneys raised concerns about the suspension process and alleged partiality, including the concern that the Minister of Justice would likely be a witness while overseeing the process. On 23 September 2025, the applicant requested that the President delegate the matter to a neutral minister.

On 7 October 2025, the President withdrew the delegation to the Minister of Justice and redelegated the matter to the Minister of Transport by Presidential Minute 233 of 2025. The applicant asserted that the redelegation signified a substantive reset requiring the disciplinary process to be commenced afresh with newly appointed functionaries. The Minister of Transport disputed that interpretation and maintained that she was entitled, in exercising her delegated authority, to retain the previously appointed chairperson and initiators for reasons including efficiency and avoiding duplication of costs. The President, in an explanatory affidavit, stated that the redelegation was done out of caution and to avoid perceptions of partiality, but expressly disavowed any finding that prior steps were unlawful or unfair and did not direct that the process be restarted de novo.

On 27 November 2025, the Minister of Transport issued a signed disciplinary hearing notice and served it with an evidence bundle on the applicant. The disciplinary hearing convened on 5 December 2025 before Prof. Madima SC as chairperson. The applicant raised a point in limine contending that the chairperson lacked authority because he had been appointed pursuant to the earlier delegation, which was later withdrawn; notably, the applicant did not seek the chairperson’s recusal on grounds of bias.

On 4 December 2025, the applicant referred an unfair labour practice dispute to the General Public Service Sector Bargaining Council, contending that his suspension had lapsed after 60 days and he was being unlawfully prevented from returning to work. The parties disputed whether the 60-day period had expired, but the Labour Court considered that this issue did not need to be determined in the application before it.

On 19 December 2025, the chairperson issued a written ruling dismissing the authority challenge, extending the applicant’s suspension until the conclusion of the disciplinary hearing, and setting further hearing dates in February 2026. That ruling prompted the urgent Labour Court application.

Where disputes of fact existed, the Court indicated it would approach them through the Plascon-Evans rule applicable to motion proceedings, but the dispositive outcome turned primarily on jurisdictional and competency considerations rather than factual disputes.

3. Legal Issues

The central questions the Court was required to determine concerned jurisdiction and procedural competency, namely whether the Labour Court had jurisdiction to entertain an urgent application seeking final relief that would invalidate and interdict an ongoing disciplinary hearing, and whether it could set aside an internal chairperson’s ruling in medias res.

More specifically, the Court had to decide whether the applicant’s pleaded reliance on section 157(1) of the Labour Relations Act 66 of 1995 conferred jurisdiction on the Labour Court to intervene in incomplete disciplinary proceedings, particularly where the relief was framed as a declaration of unlawfulness and invalidity rather than the vindication of labour rights through LRA mechanisms.

The Court also had to determine whether section 158(1)(a)(iii) and (iv) could operate as jurisdiction-conferring provisions, or whether they merely provide powers once jurisdiction is otherwise established.

A further issue was whether section 158(1)(h), which confers review jurisdiction over acts or decisions taken by the State as employer, could be used to obtain the relief sought in the form and circumstances presented, including whether an urgent review in medias res seeking final relief was competent, and whether the applicant had demonstrated the kind of exceptional circumstances that justify judicial interference before completion of internal processes.

Finally, the Court had to address whether it had jurisdiction to entertain the applicant’s complaint about continued suspension framed as unlawfulness, and whether the appropriate forum was instead the bargaining council through unfair labour practice proceedings.

These questions primarily involved questions of law (jurisdictional reach and statutory interpretation), together with the application of law to fact (the characterisation of the dispute and whether the pleaded cause of action matched any statutory jurisdictional foothold). The Court also made a discretionary/evaluative assessment when considering urgency, exceptionality, and costs.

4. Court’s Reasoning

The Court accepted that the matter was urgent in the practical sense required for urgent motion proceedings. It found that the applicant acted with sufficient promptness after receiving the chairperson’s ruling on 19 December 2025, taking into account the timing of the December holidays and the steps required to obtain legal advice and prepare a detailed application. The Court therefore enrolled and determined the application as urgent, but emphasised that urgency did not resolve the threshold question of jurisdiction.

Turning to jurisdiction, the Court held that jurisdiction must be established from the applicant’s pleaded case as set out in the notice of motion and founding affidavit. The applicant expressly relied on section 157(1), section 158(1)(a)(iii) and (iv), and section 158(1)(h) of the LRA. The Court treated those pleaded bases as the starting point and assessed each in turn.

In relation to section 157(1), the Court explained that the Labour Court’s jurisdiction is statutorily circumscribed and not a general supervisory jurisdiction over all employment-related disputes. The Court traced earlier authority in which the Labour Court and Labour Appeal Court had entertained the idea that the Labour Court could intervene in incomplete disciplinary proceedings in “exceptional cases” (including the approach associated with Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC)). However, the Court considered the jurisprudential shift following the Constitutional Court’s decision in Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC), which underscored that the LRA creates rights (notably against unfair dismissal) and also creates specific processes and fora for their enforcement, and does not contemplate broad declaratory remedies premised on unlawfulness/invalidity within its scheme.

On the Court’s reading, the more recent Labour Appeal Court decision in Cibane and Another v Premier of Province of Kwazulu-Natal (2025) 46 ILJ 2587 (LAC) clarified that, to the extent Booysen had been understood to establish a general rule of jurisdiction to intervene in incomplete disciplinary proceedings (subject only to exceptionality), that understanding could not be sustained under section 157(1). Applying Cibane, the Court held that the applicant could not rely on section 157(1) as a general jurisdictional gateway to challenge alleged unlawfulness in ongoing disciplinary proceedings. In the Court’s view, the applicant did not plead reliance on a specific LRA right or an employment statute that would confer jurisdiction for the relief sought; rather, the case was framed in terms of invalidity and unlawfulness of ongoing disciplinary steps.

In relation to section 158(1)(a)(iii) and (iv), the Court held that these provisions do not themselves confer jurisdiction but rather set out powers the Labour Court may exercise once jurisdiction is otherwise established. The Court relied on the distinction drawn in Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC) between provisions that are merely empowering and those that are jurisdiction-conferring. On that approach, the Court concluded that section 158(1)(a) could not be used to create jurisdiction where none existed, and the applicant’s reliance on it as an independent jurisdictional foothold was misplaced.

The Court then addressed section 158(1)(h). It accepted that section 158(1)(h) is a jurisdiction-conferring provision empowering the Labour Court to review acts or decisions of the State as employer “on such grounds as are permissible in law.” However, the Court emphasised that section 158(1)(h) does not establish an unrestricted pathway to litigate workplace fairness disputes or to bypass LRA dispute-resolution processes. The Court reasoned that a section 158(1)(h) review requires ordinary review discipline, including properly articulated review grounds and an appreciation that review occurs within the overall architecture of LRA dispute resolution.

Central to the Court’s reasoning was the enquiry into the true nature of the dispute. It held that where the complaint is substantively about procedural fairness of disciplinary processes (including fairness of hearing arrangements and suspension), the LRA provides an adequate and prescribed pathway for resolution—typically through bargaining council processes and, if necessary, subsequent review under section 145 in appropriate cases. The Court considered that the applicant’s founding papers repeatedly invoked the right to a fair hearing under the SMS Handbook, and that the applicant’s attempt to frame the same grievance as “unlawfulness” did not alter the underlying character of the dispute. Relying on decisions such as Magoda v Director-General of Rural Development and Land Reform and Another (2017) 38 ILJ 2795 (LC) and the principle that section 158(1)(h) reviews are generally not permissible where there is an adequate LRA remedy, the Court concluded that the applicant could not competently pursue the matter as an urgent section 158(1)(h) review.

Separately, the Court held that even if the matter were treated as a legality review, the applicant was seeking to review a ruling in medias res in uncompleted disciplinary proceedings. The Court treated the general prohibition on piecemeal review intervention (reflected for statutory dispute-resolution proceedings in section 158(1B) of the LRA, and supported by authority such as Cibane) as applying with even greater force to internal disciplinary proceedings. In the Court’s assessment, the applicant sought not interim relief pending a properly constituted review, but final relief on an urgent basis, which the Court regarded as procedurally incompetent. The Court also held that the applicant had not shown the required exceptional circumstances justifying intervention prior to completion of the disciplinary process, noting in particular that the applicant did not allege bias on the part of the chairperson and that the impending expiry of a fixed-term contract did not, without more, constitute exceptionality.

In addressing the suspension component, the Court held that it lacked jurisdiction to entertain a case pleaded as unlawful suspension, adopting the line of authority that unlawfulness claims of this sort fall outside the LRA scheme and that relief must be sought on the basis of fairness through the unfair labour practice jurisdiction of a bargaining council. The Court noted that the applicant had in fact already referred a suspension dispute to the GPSSBC and treated that as confirming the availability of an adequate alternative remedy. The Court therefore declined to determine contested issues such as how the 60-day period should be calculated or whether the chairperson was competent to extend suspension in the manner he did, holding that these issues belonged in the proper statutory forum.

On costs, the Court exercised its discretion under section 162(1) of the LRA. It reasoned that the application should not have been pursued and amounted to an abuse of process, particularly in the context of repeated urgent attempts to derail disciplinary proceedings in the public service. The Court found a costs order justified to vindicate the proper use of judicial resources and to reflect the unmeritorious nature of the litigation, though it declined to grant punitive costs on the scale sought.

5. Outcome and Relief

The Court ordered that the application be heard as one of urgency, but dismissed the application for want of jurisdiction.

The applicant was ordered to pay the fourth respondent’s costs on the party and party scale B, including the costs of two counsel. No costs order was sought by the fifth respondent, who abided the result.

Cases Cited

Public Allied Workers Union of SA on Behalf of Netshikhudini v Commission for Conciliation, Mediation and Arbitration and Others (2022) 43 ILJ 2812 (LC).

National Union of Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd (2025) 46 ILJ 2712 (LC).

Choko-Choko and Others v Tharisa Minerals (Pty) Ltd (2025) 46 ILJ 2618 (LC).

George v Nyoka and Others [2023] 7 BLLR 654 (LC).

Minya v SA Post Office Ltd and Others (2021) 42 ILJ 141 (LC).

Plascon Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A).

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC).

Jooste v Staatspresident en Andere 1988 (4) SA 224 (A).

National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA).

Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another (2016) 37 ILJ 902 (LAC).

Molapo Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC).

Minister of Justice and Correctional Services and others v Tshifhango and Another [2019] 7 BLLR 627 (LAC).

TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and Another (2017) 38 ILJ 2721 (LAC).

SA Football Association v Mangope (2013) 34 ILJ 311 (LAC).

Transport and General Workers Union and Others v Hiemstra NO and Another (1998) 19 ILJ 1598 (LC).

Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC).

Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC).

Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC).

Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC).

Du Plessis v Public Protector and Others (2020) 41 ILJ 919 (LC).

Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC).

Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA).

SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA).

South African Municipal Workers Union and Others v Mokgatla and Others 2016 (5) SA 89 (SCA).

Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC).

Public Servants Association of SA on behalf of De Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC).

Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC).

Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC).

Democratic Municipal and Allied Workers Union of SA and Others v City of Johannesburg (2020) 41 ILJ 912 (LC).

Neumann v Western Cape Education Department and Others (2021) 42 ILJ 561 (LC).

National Education Health and Allied Workers Union and others v University of South Africa and another (2022) 43 ILJ 2351 (LC).

Shezi v SA Police Service and Others (2021) 42 ILJ 184 (LC).

Cibane and Another v Premier of Province of Kwazulu-Natal (2025) 46 ILJ 2587 (LAC).

Baloyi v Public Protector and Others (2021) 42 ILJ 961 (CC).

SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC).

Mohlomi v Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC).

O'Connor v Department of Education, Eastern Cape and Others (2024) 45 ILJ 1041 (LC).

Zungu v Premier, Province of Kwazulu-Natal and Another (2017) 38 ILJ 1644 (LAC).

Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC).

Leshabane v Minister of Human Settlements and Others (2024) 45 ILJ 833 (LC).

Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC).

SA Social Security Agency v Hartley and Others (2023) 44 ILJ 1334 (LC).

Magoda v Director-General of Rural Development and Land Reform and Another (2017) 38 ILJ 2795 (LC).

Zondi and Others v President, Industrial Court and Others (1991) 12 ILJ 1295 (LAC).

South African Cabin Crew Association obo Members v South African Airways (Soc) Ltd and Others [2025] 10 BLLR 1048 (LAC).

Tshabalala v Moqhaka Local Municipality and Another (2025) 46 ILJ 590 (LAC).

Phahlane v SA Police Service and Others (2021) 42 ILJ 569 (LC).

Strydom v Arcelormittal SA (2024) 45 ILJ 931 (LC).

Department of Public Works and Another v Vukela and Others (2022) 43 ILJ 2319 (LC).

Lekabe v Minister: Department of Justice and Constitutional Development (2009) 30 ILJ 2444 (LC).

Democratic Nursing Organisation of SA on behalf of Binza v Department of Health, Western Cape Province (2025) 46 ILJ 606 (LC).

Mokoena v Merafong Municipality and Others (2020) 41 ILJ 234 (LC).

Legislation Cited

Labour Relations Act 66 of 1995 (as amended).

Employment Equity Act 55 of 1998 (as amended).

Basic Conditions of Employment Act 75 of 1997 (as amended).

The statute referred to in the presidential delegations as “the Act”, in terms of which sections 42A(3), 12(1)(a), 16A, 16B, 17(1) and 17(2)(d) were cited.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The Court held that it lacked jurisdiction to grant the applicant the relief sought. It held that section 157(1) of the Labour Relations Act 66 of 1995 does not confer a general jurisdiction on the Labour Court to intervene in uncompleted disciplinary proceedings, particularly where the challenge is framed as one of unlawfulness and invalidity rather than the enforcement of LRA rights through prescribed processes.

The Court held that section 158(1)(a) does not confer jurisdiction but only provides remedial powers once jurisdiction is otherwise established, and therefore could not serve as the jurisdictional basis for the application.

The Court held that while section 158(1)(h) is jurisdiction-conferring as a review provision, it did not assist the applicant in the circumstances because the dispute, properly characterised, implicated issues of procedural fairness and workplace discipline for which the LRA provides ordinary dispute-resolution mechanisms, and because an urgent and final review in medias res is not competent absent exceptional circumstances, which were not established.

The Court further held that it had no jurisdiction to determine the applicant’s suspension complaint framed as unlawfulness, and that disputes about suspension under the SMS Handbook fall to be pursued under the unfair labour practice jurisdiction of the relevant bargaining council, a course the applicant had already invoked.

LEGAL PRINCIPLES

Jurisdiction in the Labour Court is not assumed; it must be conferred by statute and must be established with reference to the applicant’s pleaded cause of action as set out in the notice of motion and founding affidavit.

Section 157(1) of the Labour Relations Act 66 of 1995 does not create a general jurisdiction to intervene in ongoing workplace disciplinary proceedings. Following Cibane and Another v Premier of Province of Kwazulu-Natal (2025) 46 ILJ 2587 (LAC), any assumption of a broad, general interventionary jurisdiction in uncompleted disciplinary processes (subject merely to “exceptionality”) cannot be sustained under section 157(1).

Section 158(1)(a) is not a jurisdiction-conferring provision; it provides powers (including declaratory-type relief) that may be exercised only once jurisdiction is otherwise established under another statutory source.

Section 158(1)(h) confers review jurisdiction over State-employer conduct, but it operates within the broader LRA system of dispute resolution. A section 158(1)(h) review is generally not permissible where the LRA provides an alternative remedy for the substantive complaint, and it requires a proper articulation of legally permissible review grounds.

A review brought in medias res—before disciplinary proceedings have been finalised—is generally discouraged. Intervention before completion requires exceptional circumstances, and the Court emphasised that it should be particularly slow to entertain piecemeal review challenges to internal disciplinary rulings because doing so undermines the LRA objective of expeditious dispute resolution. The Court treated the applicant’s attempt to secure final relief on an urgent basis as procedurally incompetent in this context.

Claims about suspension framed as unlawfulness do not fall for adjudication in the Labour Court as stand-alone unlawfulness claims; they are appropriately channelled through LRA mechanisms as disputes about unfair suspension (an unfair labour practice) to be determined in the bargaining council forum.

Mashabane v Madima and Others (2026/000760) [2026] ZALCJHB 20 (28 January 2026)